2009 Intellectual Property Wypadki
From Intellectual Property Wypadki
Contents |
COPYRIGHT
Copyright law applies to any work that meets 3 requirements:
- original
- work of authorship
- fixed in a tangible medium of expression
Requirements
(1) Originality
The work must be original to qualify for protection. There are two distinct requirements: (1) the work must be independently created by the author (the author must not have just copied from a preexisting source); and (2) the work must possess at least some minimal degree of creativity.
Note:
- Discovery is not creation.
- Originality requires that one be the "maker" or "originator" not merely one who discovers and records a fact. However, works containing facts may be copyrighted, if they contain other elements created by the author.
- Originality will be found in all but a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.
- A work may be copyrightable even if it incorporates nonoriginal elements.
- Mere editorial changes do not meet originality requirement.
- Non-original elements are especially common in two categories of works: 1) derivative works (b/c they are adaptations of preexisting works); and 2) compilations (which may be collections of facts or preexisting works).
- CR in a compilation or derivative work extends only to the material contributed by the author of such work, as distinguished from the pre-existing material employed in the work.
Compilations: a work consisting entirely of unprotected elements is copyrightable (such as facts or work created by others) if the author shows the requisite creativity in selecting, coordinating, or arranging those unprotected elements.
Feist Publications v. Rural Telephone Services
Rule: Facts are not copyrightable, but compilations of facts generally are.
Rule: To establish infringement, two elements must be proven: (1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are original.
Rationale: The originality requirement was not satisfied. Rural's selection of listings for the telephone directory white pages could not be more obvious. It published the most basic information - name, town, and telephone number. For these reasons, it was not protected by copyright.
Meshwerks Inc. v. Toyota Motor Sales
Facts: G & W contracted with Meshworks. Meshworks was to help with digitization and modeling. Meshwerks used measurements and modeling software to generate a digital image resembling a wire frame model. G & W then manipulated the computerized models by adding detial to the frames. Meshwerks claims it contracted only for a single use of its models and that D improperly reused and redistributed the models in other media.
Hold: The images could not be copyrighted; therefore, no infringement took place.
Rationale: Meshwerks' digital wireframe models depict only those unadorned vehicles, having stripped away all lighting, angle, perspective and "other indgredients" associated with an original expression. Although a considerable amount of time, effort, and skill went into making the digital models; the assessment of the originality of a work for copyright protection is limited to the final product, not the process.
Paul Morelli Design v. Tiffany and Co.
Facts: Morelli was refused CR registration for its jewelry. It nevertheless sued for infringement. Morellia moved for a new trial after the jury found that evidence failed to establish copyrightability.
Hold: The court found that the jury had everything it needed to render a proper verdict.
Rationale: The jury considered an array of evidence, including: carefully set forth legal definitions of originality and creativity, inspection of the Morelli and Tiffany jewelry during trial and deliberations, extensive tesitmony from witnesses about origin, design, elements, and manufacture of both.
Rule: Attractiveness, commercial sucess and substantial efforts are not factors to be considered in deciding wehther a work is original.
CR applies only to works of authorship. It applies without regard to artistic merit and is not limited to a particular category of creative work.
Note:
- The requirement that something be a work of authorship does exclude some fruits of human creativity such as conversation (witty remarks).
- Must be a product of human authorship.
(3) Fixed in a Tangible Medium of Expression
Fixation requirement - a work is fixed "when its embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiantly permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than a transitory duration." (CR Act of 1976)
Excluded Subject Matter
(1) Ideas
CR does not protect ideas, no matter how original the idea is.
Types of Ideas:
(a) Concepts: parade with floats, game show or contest
(b) Solutions: Rules for a game
(c) Building Blocks: plot/theme of a novel
Abstractions Test - It is okay to copy general elements of a story/play, as long as you express them in a different form. To copy at a more specific level is taking protected expression.
Merger Doctrine - In some cases, an idea can only be expressed in one or a few ways. To the extent that the idea constrains its expression, the expression is unprotected. (Ex. box of cinnamon tea is likely to show pictures of cinnamon sticks - such depictions are not protected)
Note:
- Scenes a faire - elements of a work are unprotected if they are commonly found in works of that genre. (villain that cackles)
CR does not protect functional aspects of works: procedure, process, system, or method of operation.
- Note: functional elements may be patentable
Basic issue is often whether an element is creative (belonging in the realm of CR) or functional (belonging in the realm of patent.
- Note: a work may be functional and still have protected creative expression. (Ex. lamp base functions to hold lamp, but lamp base composed of dancer statuette is protectable by CR)
Instructions and Rules
Words, pictures, and symbols can be functional.
Ex. instructions for assembling a bike, cooking recipes, etc.
- Note: Ask - Whether there are alternative ways to implement the functional purpose of the work? If there are many different ways to write the recipe or the instructions, then the set of instructions would be deemed a protected expression.
(3) Useful Articles
An article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.
Ex. Clothing - generally barred from CR
Note:
- CR does apply to uniqurely designed fabric (including the label on your jeans)
- CR does apply to jewelry and some belt buckles
(4) Infringing Works
PATENT
Patents are another kind of IP.
TRADEMARK
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